California’s recently concluded legislative session saw the passage of two new state laws, Assembly Bill 1776 and Senate Bill 690, which emerged from the long-standing “tort wars” at the state Capitol. These measures signify ongoing legislative conflicts between personal injury lawyers and their allies, and business interests and their insurers, concerning liability lawsuits and compensation.
Assembly Bill 1776, a significant expansion of the Cartwright Act, California’s long-standing anti-monopoly law, underwent modifications before final approval. Initially, the state’s Law Revision Commission proposed extending the act to actions by a single corporation that had monopolistic effects, also suggesting that private parties could file suits under the revised law. Business interests voiced opposition to the entire concept, describing it as unneeded, and particularly disliked the provision for a private right of action. This specific part was ultimately stricken from the bill before it received final approval, thus limiting enforcement of the expanded law to the attorney general or a local prosecutor.
The second measure, Senate Bill 690, addressed concerns arising from a publication by the American Bar Association that detailed how some California attorneys were reportedly using, or misusing, the state’s law against secret wiretaps. These attorneys were demanding payments from corporations for their use of website tracking software to gather information. Business groups characterized this practice as extortion. SB 690 was drafted and enacted specifically to make it much more difficult to use the wiretap law in this manner.
The “tort wars” are a perpetual game played in the state Capitol, an arena where lobbyists representing thousands of interest groups battle over issues, often involving significant sums of money. The Legislature and the governor frequently enact new provisions that financially benefit one interest group or impose costs on another. These conflicts focus on laws that define which actions cause damages, known as “torts,” which can lead to liability lawsuits, and what compensation can be collected if such cases are successful. The financial stakes involved in these disputes are immense, potentially totaling many billions of dollars.
The dynamics of these legal and financial skirmishes have been demonstrated historically. In September 1987, as a legislative session neared adjournment, veteran lobbyists for major tort war interests and key legislators engaged in closed-door negotiations over long-simmering issues. These discussions, which included Willie Brown, then the speaker of the Assembly, continued spontaneously at a Sacramento restaurant and resulted in the “napkin deal.” This agreement, jotted down on a napkin and quickly drafted into legislation without public input, granted involved parties at least some of their desired outcomes. Notably, one provision protected the tobacco industry from lawsuits by former smokers affected by disease, a part that years later caused controversy for some politicians.
More recently, the business side achieved a significant victory two years ago with the passage of two bills that narrowed the scope of the Private Attorneys General Act (PAGA). This law allows workers to sue their employers in the name of the state for alleged violations of workplace laws. Employer groups had previously qualified a ballot measure aimed at overhauling PAGA, which prompted a compromise agreement from lawyers and rival interests in exchange for dropping the measure.
With this year’s legislative session concluded, participants in the “tort wars” are already preparing for the next round of legislative battles. The ongoing nature of these conflicts underscores the continuous efforts to define new legally actionable acts, modify existing ones, or devise strategies to counter the tactics employed by opposing sides.